In the twenty years since the practice of Collaborative Law began, professionals have found that the strength of their working relationships with each other plays a vital role in their ability to resolve conflict. The purpose of this article is to explore why this is so. Our focus is on both negotiation theory and the skills and personal qualities that enhance professional relationships. Thus, our intention is to enhance both understanding and professional practice.
1. The Social Fabric of Collaborative Practice. The first Collaborative Law practitioners—four lawyers in Minneapolis, led by Stuart Webb—formed a practice group in 1990, the Collaborative Law Institute, which now includes almost 100 lawyers, mental health professionals, child specialists, financial professionals, and mediators. In the United States, more than 200 Collaborative Law practice associations have formed—some are statewide, while others are regional or local. An additional thirty-six groups have formed in Canada, and fifty in other countries. The International Academy of Collaborative Professionals¾the leading professional organization in the field—has more than 4,300 members.
This proliferation of groups tells only a part of the story. Within many of these associations, numerous practice groups have formed. For example, the Massachusetts Collaborative Law Council, formed in 2000, now has almost 200 members, many of whom meet on a regular basis in seven smaller sub-groups, such as the Greater Boston Practice Group, the Norfolk County Practice Group, and the Northern Massachusetts Practice Group. In these smaller groups, which meet monthly, practitioners get to know each other better, and thus form relationships of trust.
Many of these groups include—in addition to lawyers—mental health professionals, financial professionals, and coaches, who, in individual cases, form a multidisciplinary team to assist with negotiations. This broader roster of professionals has expanded the concept of Collaborative Law to Collaborative Practice. (The latter term will be used in the remainder of this article.) The term “Collaborative lawyers” is used here to refer to lawyers only, while “Collaborative professionals” refers to all professionals involved in Collaborative Practice (including not only lawyers, but also coaches, mental health counselors, financial specialists, etc.).
Collaborative Practice organizations promote networking across professional role boundaries, and thus, for example, lawyers, who are often accustomed to engaging in professional development activities solely within the confines of their own profession, become acquainted with members of other professions. These connections help the lawyers and other professionals make knowledgeable decisions when they assemble a multidisciplinary team to handle individual cases.
In this article, we focus on the way in which these connections are formed and maintained, and in particular on the personal qualities that enable Collaborative professionals to foster relationships of trust that assist them in resolving individual cases. Organizations and practice groups certainly play a role in this, but perhaps even more important are the skills and intentions that we as individual practitioners bring to our work. As set forth below, these conclusions are based on a review of literature about negotiation theory and interviews with Collaborative professionals.
2. Negotiation Theory and the “Prisoner’s Dilemma.” The process of resolving legal conflicts has been modeled in dispute resolution literature as a “Prisoner’s Dilemma,” often cited as a fundamental problem in the field of game theory. The Prisoner’s Dilemma concept has been used to describe why two people (or companies or other entities) often fail to cooperate even when it is in their best interest to do so. Although originally described and discussed by researchers Merrill Flood and Melvin Dresher at the RAND Corporation and pursued for possible applications to global nuclear strategy, the “game” was first given the name “Prisoner’s Dilemma.” The story was first told in the context of police interrogation was by mathematician Albert W. Tucker, who wanted to make the concept more accessible. The Stanford Encyclopedia of Philosophy describes the dilemma as follows:
Tanya and Cinque have been arrested for robbing the Hibernia Savings Bank and placed in separate isolation cells. Both care much more about their personal freedom than about the welfare of their accomplice. A clever prosecutor makes the following offer to each. ‘You may choose to confess or remain silent. If you confess and your accomplice remains silent, I will drop all charges against you and use your testimony to ensure that your accomplice does serious time. Likewise, if your accomplice confesses while you remain silent, they [sic] will go free while you do the time. If you both confess, I get two convictions, but I’ll see to it that you both get early parole. If you both remain silent, I’ll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning.’
In this model, the only sure way to avoid doing “serious time” is to confess, and thus the prosecutor is likely to get two convictions.
The chart below illustrates a simplified pay-off structure for the Prisoner’s Dilemma in a legal negotiation in which the stakes are financial instead of jail time. Imagine that two litigants are trying to decide whether to negotiate or proceed in court.
$30K to each
$0K to A
$50K to A
$10K to each
In this example, defection means engaging in aggressive action in court that produces a swift and decisive victory ($50,000) at a modest cost—but this strategy will work only if the other litigant refrains from making the same move. If both parties defect (i.e., initiate court action), they both suffer a suboptimal result ($10,000). On the other hand, cooperation (e.g., taking no action in court and instead negotiating an equitable division of the resources available) is rewarded ($30,000 to each)—but only if both parties cooperate. If one cooperates, and the other does not, the cooperating party suffers the worst outcome of all ($0).
Unless both parties can credibly commit to cooperation, there is a powerful incentive to defect, because by defecting, one will always do at least as well as the other party. Thus, defection often becomes the default strategy in this highly simplified Prisoner’s Dilemma scenario, even though it results in each party winning only $10,000, instead of the $30,000 each would win under a strategy of mutual cooperation.
Social science and neuroscience have contributed greatly to our understanding of why people choose to “defect.” Beating the other side feels good. A study conducted in Germany in 2007, and summarized for non-scientists by Time.com in November 2007, showed that certain forms of pleasurable brain activity correspond to winning more money than the other party in a game. In the game, players earned a cash prize for answering a question correctly. Players on average were more pleased to win a €60 cash prize if the other side earned only €30 than they were if both players earned €60. Research has also shown that the pain of earning less than someone else for the same task is stronger than the positive response to earning more.
In the litigation game above, one can never do worse than the other side if one defects, and a person who defects has the possibility of winning much more if the other side cooperates. Thus, without some element in the negotiation that promotes cooperation, scientific research suggests that the parties will default to mutual defection for both pragmatic and psychological reasons.
3. A Solution to the Prisoner’s Dilemma: Disaggregating the Negotiation. Game theorist Robert Axelrod identified a method for solving the Prisoner’s Dilemma by organizing a computer programming contest. He conducted a tournament in which participants were invited to submit computer programs that chose whether to “cooperate” or “defect” in 200 consecutive rounds of bidding. Sixty-two participants submitted programs. The winning program, developed by mathematician Anatol Rapoport, was called “Tit-for-Tat,” and it consisted of the following algorithm: cooperate in the first round and then, in each successive round, do what the other program did in the previous round.
One of the key elements of this algorithm is that it permits disaggregation of the negotiation—in other words, instead of a one-round winner-take-all negotiation, the tournament more realistically imitates actual negotiation by creating opportunities for each negotiator to adjust her behavior to the behavior of the other negotiator. Legal negotiations often involve protracted time lines and a multiplicity of procedural and/or substantive issues, and therefore the “Tit-for-Tat” approach provides a useful framework. One advantage that a real-life negotiator has, as compared with a computer program, is the ability to be transparent and to communicate the negotiation strategy that she is using. Thus, by viewing each round of the negotiation as a new opportunity to adjust one’s strategy, and by communicating a willingness to reciprocate cooperation, one negotiator might persuade another to cooperate.
4. Another Solution to the Prisoner’s Dilemma: A Credible Commitment to Collaboration. In a ground-breaking article entitled “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation,” Professors Ronald J. Gilson and Robert H. Mnookin analyzed legal negotiations using the Prisoner’s Dilemma model, first with only the two litigants themselves, and then in a variation where the two parties were playing the game through their attorneys, acting as “agents,” whose interests may not always be aligned with their clients’ interests. Gilson and Mnookin concluded that, in the absence of a way to bind Litigant A to a cooperative strategy, Litigant B’s best strategy will always be to defect. The same holds for Litigant A with respect to Litigant B, creating a defect-defect “dominant strategy equilibrium.” In other words, the temptation to defect drives the litigants to a mutually destructive courtroom battle.
Gilson and Mnookin next examined the role that counsel can play in binding litigants to a cooperative strategy. The process of negotiating through counsel, the authors contended in their article, can add value if the lawyers commit to a cooperative process. Gilson and Mnookin suggested that the presence of certain conditions may help bind the lawyers to a strategy of mutual cooperation and thus solve the Prisoner’s Dilemma. First, clients must be able to choose lawyers with known reputations for cooperation. Next, prior to beginning the litigation game, clients must be able to see whom the other side has chosen as counsel, and, if the other side has chosen an adversarial lawyer, the client must be able switch to an adversarial lawyer at little or no cost. Finally, once the litigation game begins, clients must not be permitted to switch counsel. The authors predicted that lawyers who could credibly commit to cooperate would be able to achieve superior results for their clients. Subsequent empirical research by Rachel Croson and Robert Mnookin strongly suggests that if these assumptions are met, the outcome is indeed more cooperation and less defection between litigants.
Gilson and Mnookin’s argument relies on the existence of a “reputation market” for cooperative lawyers, one in which a lawyer’s professional reputation for cooperation becomes an asset in itself. In such a market, a lawyer puts her reputation at risk if she departs from a cooperative strategy to achieve a temporary gain in a case. The lawyer’s reputation for cooperation thus becomes her “bond”—security for the commitment to collaborate. Gilson and Mnookin argued in their article that “the relationship between opposing lawyers and their capacity to establish credible reputations for cooperation have profound implications for dispute resolution.”
The value of a lawyer’s ability to “bond” a deal, and thus close a settlement gap, is confirmed by psychological research, described below. A cooperative negotiation strategy builds on the “rule of reciprocity” that social psychologist Robert Cialdini described as “hard-wired” into all of us. Because of this rule, a negotiator who behaves flexibly or cooperatively creates an expectation—indeed, a sense of social obligation—of similar flexibility or cooperation from the other negotiator. Violations of this rule offend us and can lead to a downward spiral of competitive behavior. In experiments involving reciprocity, research subjects reciprocated generosity with similar generosity, but responded to “taking” with escalation. The researchers who performed this study concluded that “although firmly entrenched, the culturally conferred wisdom about reciprocity appears to be miscalibrated and in need of [the following] revision: ‘You scratch my back, and I’ll scratch yours, but if you take my eye, I’ll take both of yours.’” These insights into human behavior help to explain the experience reported by many Collaborative Practice professionals that even slight departures from cooperation in a negotiation can produce heightened reactions in clients on the receiving end of such defection.
In 1994, when Gilson and Mnookin published their article, they were unaware that “reputation markets” for cooperative lawyering were just beginning to be formed in the newly created field of Collaborative Law. (As Prof. Mnookin has quipped, his work with Prof. Gilson showed that “what works in practice also works in theory.”) The Collaborative Practice movement created, and continues to create, such markets via the dense web of professional relationships, which enhance communication among professionals about successful and unsuccessful cases.
The “reputation market” concept, in practice, has two dimensions to it: reputation with clients and reputation with other lawyers. A lawyer’s reputation with potential clients as someone who behaves collaboratively is a necessary condition of the stage before the litigation, in order to ensure that clients who wish to may choose cooperative lawyers. Lawyers also have reputations with each other because they tend to be “repeat players;” in the relatively small field of Collaborative Practice, some lawyers reported having had up to a dozen or more negotiations with the same counsel. Gilson and Mnookin shared in their article some of the reasons why it is often easier for lawyers to see a defection by the other side even before their clients can. Defections have consequences in the legal community; if a lawyer “defects” in negotiations with her Collaborative colleagues, other lawyers in the Collaborative community often hear about it, and in the future will be wary of taking on Collaborative cases with that person.
Gilson and Mnookin’s largely hypothetical description of the process of “pre-litigation” selection of lawyers by clients, based on their reputations for cooperating or not cooperating, is entirely accurate. Indeed, the impact of the reputation market in the Collaborative community may serve to bind lawyers to cooperation even more strongly than predicted in the model. In today’s market for Collaborative lawyers, practice has improved upon theory. Memberships in practice groups, as described in Part 1 of this article, often become an important source of referrals due to the increased familiarity of practice group members with each other. Although in many instances the process of lawyer selection works in the way Gilson and Mnookin described, with both clients independently selecting counsel with a reputation for collaboration, in many Collaborative cases, one party will actively seek out and select a Collaborative lawyer, who then will provide the client with names of other Collaborative lawyers, and the client then shares those names with the other party.
For example, in divorce cases, the initial contact with counsel is often made by the party who wants the divorce, if the desire to end the marriage is not entirely mutual (as is most often the case). The Collaborative lawyer who is chosen by the first party will often present her client with a list of Collaborative lawyers in the area (with the intention that this list will be passed along by the client to the opposing party), or will recommend particular Collaboratively trained attorneys with whom she has had success in resolving cases. A lawyer who is adversarial or uncooperative, or who “defects,” is extremely unlikely to receive such recommendations from colleagues. Thus, lawyers’ professional reputations are closely tied to their ability to acquire referrals.
This informal recommendation system helps to keep Collaborative lawyers committed to a strategy of cooperation, and also provides a simple way in which lawyers who are no longer perceived as cooperative can be “removed from the game,” maintaining the value of the cooperative reputation for those who remain. A single defection is unlikely to result in irreparable harm, because the Collaborative process encourages consultation among the professionals, in separate conversations without the clients, during the course of the negotiations, thus giving the “defecting” lawyer a chance to realize her mistake, apologize, and come back to the table cooperatively.
5. Bonding the Commitment to Collaborate: The Power of Professional Relationships. In the reputation market described by Gilson and Mnookin, the lawyers’ economic interests play a primary role in determining their behavior and in fostering cooperation. The impetus for our article grew out of three related questions: (1) Does the experience of Collaborative Practice attorneys follow this economic model? (2) Are there other interests, besides economic reward, that play a role in supporting the lawyers’ ability to serve as bonding agents for their clients’ deal, such as the value that Collaborative professionals place on their relationships with other professionals? And (3) what are the skills, values, and personal qualities that strengthen these relationships?
Our conclusion, based on the interviews with professionals described below, is that the experience of practitioners has indeed been consistent with the theoretical model and that one’s professional reputation with clients and colleagues is not the only reason that Collaborative lawyers do not defect. Collaborative professionals also develop personal relationships with each other—relationships that reinforce their commitment to the Collaborative process, and that are rewarding socially, as well as professionally. Collaborative lawyers are less likely to recommend colleagues with whom they find the interactions unpleasant, even if they have successfully resolved cases with those colleagues in the past. Human nature leads us to recommend people whose company we enjoy.
Although there has been considerable discussion in the literature of Collaborative Practice about relationships between professionals and clients, and about the value of teamwork among the professionals, there has been less discussion about why positive working relationships between Collaborative professionals play such a vital role in the process. (While addressing these questions, we should not ignore the important role that these personal relationships among colleagues play in modeling constructive problem-solving behavior for clients. As collaborative professionals, we demonstrate for our clients how to resolve issues maturely, creatively, and directly with one another during the difficult and emotionally straining process of resolving conflict.)
In Collaborative Practice, there are usually at least four separate ongoing relationships: the relationship of the parties with each other, the relationships between the lawyers and their clients, and the relationship between the two lawyers themselves. One could say that there are actually six relationships, if one considers the across-the-table relationship of Lawyer A with Client B, and the similar relationship of Client A with Lawyer B, and also many more relationships if coaches and other Collaborative professionals are involved in the case. This section focuses primarily on relationships between and among the clients and lawyers, and in particular on the relationship between the two lawyers. However, a thoughtful Collaborative professional must be mindful of all of these relationships at once.
The context in which we discuss the relationships among Collaborative professionals is one in which the clients are in conflict and their relationship has broken down in whole or in part. Therefore, in order for Collaborative lawyers to be able to take the risk of cooperating, and effectively “bond” a deal between the clients, their relationship with each other becomes the vital bridge on which the parties can meet and reach an agreement. To be more concrete, it is not enough for Lawyer A to convince Lawyer B of the value of a compromise of some kind—Lawyer B has to be confident that flexibility will be reciprocated. Likewise, Lawyer A and Client A, after reciprocating, need to feel confident that Lawyer B and Client B will follow through and reciprocate, rather than defect. Such a defection, whatever the motivation, undermines the trust needed between Lawyer A and Client A in those situations—perhaps the majority—where the client is relying on the ability of her lawyer to protect her from exploitation and serve as an effective bonding agent for the deal.
6. Interviews with Collaborative Professionals. In September and October 2009, one of the authors (David Hoffman) interviewed approximately 30 Collaborative professionals about their relationships with other Collaborative professionals and the impact of those relationships on the settlement of cases. Participants included lawyers, mental health professionals, coaches, and financial professionals, all of whom volunteered in response to a request for interviews. All the participant pairs or groups had long-term working relationships with each other; some reported having had up to fifty or sixty cases with each other.
Based on the information gathered in these interviews, we have compiled a list of qualities and skills that contribute to building and maintaining positive relationships between Collaborative professionals. These qualities and skills have been organized into four categories:
Conclusion. Social science research has explained what common sense tells us about competition and cooperation in negotiations—namely, that people like to “win,” hate to “lose,” and accordingly often default to competitive strategies that guarantee that they will do no worse than the other party, even if those strategies produce suboptimal results for both parties. This is the essence of the Prisoner’s Dilemma. However, the dense fabric of relationships woven by the Collaborative Practice movement has created a “market” in which a professional’s reputation for collaborative negotiation enhances her ability to overcome the “Prisoner’s Dilemma” and settle cases.
Collaborative Practice provides practitioners with three important solutions to this “Prisoner’s Dilemma” problem: (1) disaggregating the negotiation so that one can assess and respond to the strategy of the other party, (2) making a credible commitment to cooperation by entering into a Collaborative Practice Participation Agreement in which the parties have to hire new counsel if they litigate, and (3) promoting strong professional relationships that build trust and enable lawyers to “bond” deals for their clients. Many skills, values, and personal qualities contribute to the building of these professional relationships. By strengthening our professional relationships with each other, we as Collaborative professionals can better serve as the “bridges” that help our clients cross the chasm of entrenched conflict, freeing them from the hazards of the Prisoner’s Dilemma, and helping them to achieve a more dignified, less acrimonious, and more cost-effective resolution of their conflicts.
[The remainder of the article discusses each of these qualities and skills in detail, as they relate to Collaborative Practice. The full text is available at http://tinyurl.com/5v437f9]
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